Daily wager service is terminated on misbehavior with the senior officer. When I was deputed in the night duty one of the officers came and enquired about the HDR. I handed over the report of HDR which was not signed by the Rt technician. On this ground he abused me and insulted me in front of other staff. On the very next day he served me a copy of the termination order. The reason for termination is unsatisfactory service and misbehave with the senior doctor. Without any enquiry and recording of statements of staff presented on that day the termination order is passed. I am a daily wage employee (doctor). Please suggest how to reinstate in service?
Asked from: Uttar Pradesh
The termination of a daily wage worker's service on the grounds of misbehavior does not carry a stigma. Similarly, if a daily wage worker is terminated due to unsatisfactory service, such termination is also not considered stigmatic.
In the case of Dipti Prakash Banerjee v. Satyendra Nath Bose [1999 (81) FLR 687 (SC)], the Hon'ble Supreme Court held that the use of terms such as “unsatisfactory work and conduct” in a termination order does not amount to a stigma.
The key distinction between termination simpliciter (a straightforward termination) and punitive termination is very thin and lies in their nature and implications. Termination simpliciter refers to ending employment without attributing fault or misconduct to the employee. In contrast, punitive termination arises from allegations of misconduct and involves a disciplinary proceeding.
The differentiation is subtle and must be determined based on the facts and circumstances of each case. Without reviewing the specifics of the termination order and the attending circumstances, it is not possible for me to definitively conclude whether the order is punitive or simpliciter.
- Termination Simpliciter: When termination is simpliciter, no detailed inquiry or formal procedure is necessary.
- Punitive Termination: In cases of punitive termination, the employer is required to conduct a proper inquiry and establish the guilt of the employee before issuing the termination order.
If the language in the termination order appears vague or non-punitive on the surface but is, in reality, punitive, the affected employee should approach the court. By filing a petition, the employee can pray for the quashing of the termination order and seek reinstatement. The court will evaluate the attending circumstances and the background of the case to decide whether the employee is suitable to continue in service.
Daily wage employment is fundamentally contingent on the requirements of the employing authority. A daily wage worker does not have any inherent legal right to hold a post or demand continued employment. Their engagement is typically temporary and subject to the needs of the employer. When daily wager service is terminated on misbehavior the court does not interfere in that order.
If you can provide a copy of the termination order and details of the case's background, it would be possible to assess whether the termination was punitive or simpliciter. If the case involves wrongful termination, you may be advised to invoke Article 226 of the Constitution of India for quashing of the termination order.
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I have been terminated from service by following illegal proceedings in a departmental enquiry. There was a specific allegation against me that I gave three lakh rupees to the casual employees without obtaining proper sanction from the finance controller. However, there was an order of the superior officer dated 12-05-2016 to enhance the monthly allowance of the daily wagers in Khareef season. There was no such enhancement in the Ravi season. That is why I gave an increment to the daily wagers. This fact surfaced when one of the branch managers approached the higher authority for enhancement of wages in pursuance of the order dated 12-05-2016. That order was still prevailing but due to some enmity an enquiry was set up against me for such an enhancement.
There are sixteen branches for purchase of Kharif grains. Thirteen of them were giving enhanced wages. I was one of them. But an inquiry was set up against me only. In this scenario, the departmental enquiry was initiated. No document and statement of witnesses were produced to me while framing charges. Finally passed an order of dismissal from the service. I have sent the charge sheet and preliminary inquiry report. Please go through it and advise about the further steps.
Asked from: Uttar Pradesh
The proceedings of departmental enquiry are illegal and violative of settled principles of law. You have been punished with a major punishment. Therefore, it was mandatory for the enquiry officer to appreciate evidence and examine the statement of witnesses to establish the charges.
In your case, oral evidence has not been recorded. No witness was called to prove the charge. Documentary evidence, however, was already in possession of the department, but the enquiry officer did not establish it as true. The enquiry officer has acted as an agent of the department whereas it is settled principle of law that the enquiry officer is not a mouthpiece of the department.
In Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 the Supreme Court has held that
Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties.
In State of Uttar Pradesh v. Saroj Kumar Sinha, (2010) 2 SCC 772, the Supreme Court has clearly been held that
Enquiry Officer acts as a quasi-judicial authority and his position is that of an independent adjudicator and further that he cannot act as a representative of the department or disciplinary authority and further that he cannot act as a prosecutor neither he should act as a judge; his function is to examine the evidence presented by the department and even in the absence of the delinquent officer, has to see as to whether the unrebutted evidence is sufficient to bring home the charges.
Thus, it was the bounden duty of the enquiry officer to record the statement of witness and examine other evidence produced in support of the charge. In your case no oral evidence was produced.
In State of U.P. v. T.P. Lal Srivastava, (1997) 1 LLJ 831 the Supreme Court has held that holding oral enquiry is mandatory before imposing a major penalty. As well as the division bench of the Allahabad High Court in State of U.P. v. Kishori Lal, (2018) 9 ADJ 397 (DB) (LB) held that
in a case where the inquiry officer is appointed, oral inquiry is mandatory. The charges are not deemed to be proved suo motu merely on account of levelling them by means of the charge-sheet unless the same are proved by the department before the inquiry officer and only thereafter it is the turn of delinquent employee to place his defence.
In the above discussion it is clear that it was the duty of the enquiry officer to substantiate or establish the charges after examination of oral evidence and documentary evidence. When major punishment is likely to be imposed it was mandatory for the enquiry officer to record oral evidence.
In your case no oral evidence was recorded about the enhancement of salary of daily wagers, no daily wagers was produced as a witness to prove that he received enhanced wages. No oral evidence was recorded about the enhanced salary given by other managers of the same district. The government order dated 12-05-2016 was also not established.
It proves that the enquiry is conducted in violation of the settled principle of law. You should file a writ petition in the high court under Article 226 of the constitution of India for quashing of dismissal order. That impugned order is liable to be quashed in light of above-mentioned case laws.
Can I make a claim related to motor accidents in a consumer forum? My father died in an accident due to reckless driving of the car. He hired that car to travel from our home to Chennai. When the vehicle reached XX the driver stopped the car at the restaurant and consumed liquor. My father objected to that behaviour but he has no other option except to travel in that car. He drove that car at a very high speed and recklessly. Due to which the vehicle met with an accident and my father died. In this situation I want to claim compensation from the travel agency because it is a deficiency in service. Can I file that case?
Asked from: Tamil Nadu
This dispute or cause of action falls outside the jurisdiction of the Consumer Forum. The Consumer Forum has jurisdiction to entertain disputes related to goods and services. It can admit complaints concerning defective goods sold to consumers or deficiencies in services provided to them.
According to Section 2(1)(f) of the Consumer Protection Act, a "defect" is defined as any fault, imperfection, or shortcoming in the quality, quantity, potency, purity, or standard expected to be maintained by or under any law by a trader in relation to goods. Section 2(1)(g) defines "deficiency" as any fault, imperfection, shortcoming, or inadequacy in the quality, nature, or manner of performance required to be maintained by or under any law or undertaken to be performed by a person. Furthermore, Section 2(1)(o) defines "service" as follows:
‘Service’ means any description of service made available to potential users, including the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement, or the purveying of news or other information. However, it does not include services rendered free of charge or under a contract of personal service.
In your case, the death was caused by injuries sustained by the deceased (your father) in an accident resulting from reckless driving. The accident was not caused by any defect in the car, nor was there a defect in the vehicle itself.
The death resulting from an accident does not fall under the categories of "defect in goods" or "deficiency in service" as defined under the Consumer Protection Act. Therefore, you cannot invoke its provisions in this matter.
The Consumer Protection Act, 1986, is a general law, whereas the Motor Vehicles Act, 1988, is a special law. Motor Accident Claims Tribunals have been established specifically to handle cases related to motor accidents. As per the principle that special law prevails over general law, Section 165 of the Motor Vehicles Act will apply in this case.
You should file a claim with the Motor Accident Claims Tribunal. The limitation period for filing such a claim is six months from the date of the accident. If the limitation period has expired, you may still file a claim by providing sufficient justification for the delay. The tribunal may condone the delay under Section 5 of the Limitation Act.
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Can I challenge the promotion of ineligible candidates violating the principle of seniority cum merit because I have not been promoted despite having merit. There were five posts to be filled by promotion. One person is promoted without fulfilling the minimum educational qualification. In this case, I submitted my objection when the final seniority list was published by the departmental promotion committee. But they did nothing about my objection but passed a promotion order. I am on the waiting list. Now I want to challenge the order.
Asked from: Uttar Pradesh
When the criteria for promotion was seniority cum merit, that promotion cannot be done only on the basis of seniority. The merit also included and the DPC had to consider the merit of the candidate belonging to feeder cadre.
It is well established that the principle of seniority-cum-merit for promotion is distinct from both the principle of seniority and the principle of merit-cum-seniority. When promotion is based solely on seniority, merit does not play any role. However, under the principle of seniority-cum-merit, promotion is not granted automatically based on seniority alone; merit also plays a significant role.
The standard application of the seniority-cum-merit principle involves subjecting all eligible candidates in the feeder grade (those meeting the prescribed educational qualifications and required period of service) to an assessment process to determine whether they meet the specified minimum merit. Only candidates who meet the minimum necessary merit are promoted, and this is done strictly in the order of seniority.
In Rajendra Kumar Srivastava v. Samyut Kshetriya Gramin Bank, (2010) 1 SCC 335; B.V. Sivaiah vs K A Babu and others (1998) 6 SCC 720, the Supreme Court held that:
while the principle of seniority-cum-merit places greater emphasis on seniority, the principle of merit-cum-seniority prioritises merit and ability, with seniority being less significant. For assessing the minimum required merit, the competent authority may establish the necessary standards and prescribe the mode of assessment for evaluating the merit of eligible employees.
Thus, it is mandatory for the Departmental Promotion Committee (DPC) to establish minimum merit criteria and to consider only those candidates who meet these criteria for promotion under the seniority-cum-merit principle. A candidate who does not possess the minimum required merit or qualifications cannot be deemed fit for promotion. Therefore, such a candidate must not be considered by the DPC, and any promotion order in favor of such an ineligible candidate would be illegal per se.
You should file a writ petition under Article 226 of the Constitution of India, seeking the quashing of the promotion order on the grounds that it violates the principle of seniority-cum-merit. Prima facie, it appears that an ineligible candidate has been promoted in clear violation of the law.
Can I file a revision if the sub divisional magistrate has wrongly rejected the order of status quo in my case for declaration of title in agricultural land. My father received some agricultural land from his ancestors. We are bhumidhar with the right of alienation. Our family is not residing in the village and some other people are trying to encroach our land. Therefore, we filed a case before the court of SDM, Pharenda. He was granted status quo on the first date but later on he revoked his order. Now the advocates have different views on taking the next step against the order of SDM. One of them is advising that revision is not possible because the case is still pending. And others have advised to file revision. Please suggest.
Asked from: Uttar Pradesh
It appears that you have filed a suit under Section 144 of the Uttar Pradesh Land Revenue Code, 2006, seeking a declaration. In this suit, you requested interim relief under Section 146 of the same code.
However, the Sub-Divisional Magistrate (SDM) has revoked the prior order of status quo that was in your favour, denying the interim relief under Section 146, though the suit under Section 144 remains pending.
In this context, the order rejecting interim relief constitutes an interlocutory order. Established legal precedent dictates that no revision can be filed against an interlocutory order. In Riyasal Ali vs. DDC and Others [2022], the Allahabad High Court has held that a revision is not permissible against an interlocutory order.
Consequently, you cannot file a revision against the impugned order issued by the SDM. Under Section 210 of the Uttar Pradesh Land Revenue Code, a prerequisite for filing a revision is that the order in question must have been passed in a suit conclusively decided by the revenue court. Since your suit is still pending, you cannot file a revision either to the Board of Revenue or the Commissioner.
In this situation, it is advisable to file a petition in the High Court under Article 227 of the Constitution of India. If there is an imminent risk to the suit property, or if the opposing party might cause harm to the property, it is essential that both parties maintain the status quo. Thus, the SDM should not have revoked the prior order maintaining the status quo.
Magistrate has treated my case as a complaint and refused to direct an investigation by the local police. I have filed an application to the magistrate under Section 156(3) of the code of criminal procedure. After more than nine months the magistrate has ordered to lodge a complaint instead of investigation. I have CCTV recording to prove that the accused along with some other person entered my house at night and stole my belongings including some jewelry. On the basis of those CCTV recordings the magistrate has written in order that the facts are in the knowledge of the complainant, and he has sufficient evidence to prove the case therefore, it shall be treated as complaint instead of direction to register FIR. I am aggrieved from the order of the court.
Asked from: Uttar Pradesh
Based on the facts presented, it is inferred that the accused have committed a cognizable offence by entering a dwelling house at night and committing theft, which is punishable under Section 380 of the Indian Penal Code, with imprisonment for up to seven years.
The magistrate appears to have overlooked a crucial aspect when deciding your application. Specifically, the number of accused is more than one, with some still unidentified, and the stolen property remains unrecovered.
Under these circumstances, an investigation by the police, rather than a complaint, would be more appropriate. The police, as a specialised agency, possess the necessary authority to arrest suspects, recover property, and identify those involved.
It also appears that the magistrate processed your application in a routine and mechanical manner. In Suresh Chandra Jain vs. State of M.P. and Another (2001) 2 SCC 628, the Supreme Court emphasised that a magistrate must apply judicial discretion and should not act in a mechanical or casual manner while deciding an application under Section 156(3) of the Cr.P.C.
The magistrate's decision to direct the police to register an FIR and conduct an investigation, or to treat the application as a complaint, must be reasoned and supported. In Anmol Singh vs. State of U.P. AIR Online 2021 All 632 and Lala Ram vs. State of U.P. 2020, the Allahabad High Court similarly held that
A magistrate must apply judicial discretion in such decisions. An investigation and FIR registration should be directed when the complainant does not know the names of all accused, cannot gather the evidence required to support the case, or where recovery of property can only be facilitated by police action.
The Supreme Court, in the Lalita Kumaricase, ruled that an FIR must be registered if the information discloses the commission of a cognizable offence. In light of these considerations, you should file a petition under Section 528 of the Bhartiya Nagrik Suraksha Sanhita2023 in the High Court, seeking to quash the Magistrate’s order and have the case reconsidered.
Related: Revision against the order of investigation passed under Section 156 (3) crpc
Criminal and civil proceedings can proceed simultaneously in cheating cases if both cases are made out against the accused. I have a company who is working in casting of industrial foundry products. My company has contracted another company for the supply of specific casting tanks for cement factories. After receiving a huge contract that company is causing a delay in supply of product. Then my legal team sent a notice to comply with the terms of contract failing which heavy compensation shall be paid by you. When my team conducted an initial inquiry against the company then came to know that the company has never worked in casting. That company committed fraud and misrepresented just to obtain a contract. Can I initiate criminal and civil proceedings against that company?
Asked from: Uttar Pradesh
The facts of your case suggest that deception occurred at the very beginning of the contract. The company, having no experience in industrial casting, made false promises to obtain the contract. When deception or inducement is present from the outset or at the time of entering into a contract, it constitutes the offence of cheating.
You can initiate both civil and criminal proceedings against the company simultaneously. In Indian Oil Corporation vs. NEPC (2006), the Supreme Court held that a commercial transaction or contractual dispute, in addition to providing grounds for seeking remedies under civil law, may also involve a criminal offence.
Similarly, in Syed Askari Hadi vs. State (Delhi Administration) (2009) 5 SCC 528, the Supreme Court ruled that civil and criminal proceedings may run concurrently. A criminal court may take cognizance of the case upon being satisfied that a prima facie case exists.
Cheating is both a criminal offence and a civil wrong. You are entitled to initiate both types of proceedings simultaneously. While there is no bar to doing so, criminal proceedings tend to take precedence over civil proceedings. For more legal help please visit Kanoon India.
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The District Magistrate has wrongly cancelled my arm licence on the report of the Superintendent of Police. The SP was working on the advice of political boss. He was adamant to cancel my licence however, I was present in the mob with my gun just to protect myself. There was a quarrel between two groups of our village during the Dussehra procession. There was a call from the local administration to disburse from the scene, but a mob was present. I did not use my gun and no incident happened. But the SP sent a report that I have misused my gun licence and despite warning from the police I remained in a mob to cause terror to a religious group. In this situation my personal security is at risk.
Asked from: Uttar Pradesh
Section 17 of the Arms Act empowers the District Magistrate to cancel or suspend an arms licence under certain circumstances. However, it is mandatory for the District Magistrate to provide the licensee an opportunity to be heard before taking any adverse action.
Based on the facts of your case, it appears that you were part of a mob that had been ordered to disperse by the police. However, you deliberately remained. By doing so, you have committed an offence by wilfully disobeying the order of the authorities. It is also an undisputed fact that you were armed while present in the mob. Whether your presence caused terror during the procession is a matter to be established based on related incidents and circumstances. It is important to note that no violent incident occurred, and the mob did not become aggressive.
In the case of Mohd. Haroon vs. Superintendent of Police Siddharth Nagar (2003) 1 JIC, the Allahabad High Court ruled that mere involvement in an offence does not justify the revocation of an arms licence, unless the conduct of the licence holder reasonably suggests a potential misuse of the licence.
Therefore, mere disobedience of a police order does not give the District Magistrate grounds to cancel your arms licence. If the District Magistrate has passed a final order, you should appeal to the Commissioner. The facts indicate that the revocation order is illegal, arbitrary, and contrary to the provisions of the Arms Act. For more legal help please visit Kanoon India.
One of employee has committed suicide after receiving show cause notice for his misconduct in handling and discharging his duty. On receiving a report from the joint director that the PO has not handling the case with due diligence therefore, lost the matter in the court. Thereafter, a fact-finding inquiry was set up and receiving that findings a show cause notice was served. When he committed suicide, an FIR has been lodged against me for the offence under Section 306/107 IPC. Please suggest what to do next.
Asked from: Uttar Pradesh
Based on the facts of your case, it appears there was no instigation or incitement from your side to commit suicide. When the show cause notice was served, the deceased had the opportunity to explain the situation or present his stance against the allegation of misconduct. Until then, no adverse action was likely to be taken against him.
There was no threat posed to him as a result of the show cause notice. In cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. There must be clear and convincing evidence of such acts. In the case of suicide, mere allegations of harassment by another person are insufficient unless the actions of the accused compelled the victim to commit suicide, and such actions must be closely connected to the time of the incident.
According to this legal position, there must be direct or indirect evidence showing that the accused, through a continuous course of conduct, created a situation where the deceased felt they had no option but to commit suicide. In your case, there is no evidence of any such continuous conduct by the accused.
Therefore, prima facie, there is no evidence to support the allegation of inducement or abetment of suicide. In the case of Ude Singh vs. State of Haryana AIR 2019 SC 4570, the Supreme Court held that:
If the accused plays an active role in damaging the victim's self-esteem and self-respect, which eventually drives the victim to commit suicide, the accused may be held guilty of abetment of suicide.
However, issuing a show cause notice following a preliminary inquiry does not in any way tarnish the self-esteem of the deceased. It is part of a departmental inquiry process when an allegation of misconduct or dereliction of duty has been made against an employee.
No punishment was imposed with the issuance of the show cause notice, nor did it have any adverse impact on the character roll of the deceased employee. Under these circumstances, no offence is made out against you.
It is advisable to file a petition in the High Court under Section 528 BNSS for quashing the FIR, as no offence is made out against the accused. The FIR may be quashed by the High Court. For more legal help please visit Kanoon India.
What is remedy against order passed by appellate court under Section 29 Domestic Violence Act? Appellate court directed to pay seven lakh as compensation and sixty thousand rupees per month as maintenance in domestic violence case. My father in law is an advocate in the district court XXX. He has filed an appeal against the order of judicial magistrate first class in the domestic violence case. As an interim major the court directed to pay one lakh for the meeting of expenses borne by the wife and also pay maintenance at the rate of ten thousand rupees per month.
My father in law filed an appeal in the sessions court. The sessions judge directed to pay seven lakh as compensation and sixty thousand rupees per month as maintenance without appreciating the materials on record. I am a teacher and my salary is about ninety thousand per month. Out of which thirty thousand deposits in the NPS and twenty thousand as EMI for the home loan. If I pay sixty thousand rupees as maintenance how could I survive?
Asked from: Kerala
The appellate court's decision to award seven lakh as compensation and sixty thousand per month as maintenance in disposing of the appeal under Section 29 of the Domestic Violence Act seems erroneous. The amount of maintenance must be fixed based on the net income of the husband.
The Hon'ble Supreme Court, in Kulbhushan Kumar v. Raj Kumari, (1970) 3 SCC 129, has held that 25% of the husband's net income would be just and proper to be awarded as maintenance allowance to the wife.
As a salaried person, the amount of monthly allowance should be fixed after deducting your liabilities. The contribution to the new pension scheme is not a liability, but you are required to contribute a fixed amount per month. The EMI of the home loan is your liability. These two constitute fifty thousand per month as necessary expenses, which cannot be ignored by the court while deciding the monthly alimony.
Also read: Revision is not maintainable against an order passed by judicial magistrate in DV Act
Prima facie, the decision of the appellate court seems erroneous and is liable to be set aside. You should move a petition in the High Court under Article 227 of the Constitution of India to set aside this decision. Proceedings under the Domestic Violence Act cases are quasi-civil in nature; hence, you must approach the High Court under Article 227 instead of Section 482 of the Code of Criminal Procedure.
In Santhosh v. Ambika R., (2015) SCC Online Ker 26542, the Kerala High Court held that a party aggrieved by the order of the appellate court under Section 29 of the DV Act must file a revision under Article 227. Remedy against order passed under Section 29 Domestic Violence Act is to file revision to the High Court.
In your petition, you must adduce proof of your loan liability and monthly contribution to the new pension scheme. If you have any other liabilities, such as medical expenses for yourself or any dependent, you must also include them in the petition. You need to prove that the amount of monthly maintenance fixed by the appellate court was determined without the application of judicial mind and in violation of settled law regarding the determination of monthly alimony. For more legal help please visit Kanoon India.
Also read: Can wife claim residence order under the DV Act after the decree of divorce?
